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Carrington v. United States

United States District Court, D. Maryland

February 13, 2019

RUSSELL CARRINGTON, Petitioner,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge

         This Memorandum Opinion resolves a motion filed under 28 U.S.C. § 2255 by Russell Carrington, who is self-represented. See ECF 2112. The motion, filed on June 25, 2018, is supported by a lengthy memorandum (ECF 2112-1) (collectively, the “Petition”) and several exhibits. The government opposes the Petition. ECF 2119 (“Opposition”). Carrington replied (ECF 2120, “Reply”) and submitted additional exhibits.

         In his Reply, Carrington asserted, for the first time, that after his sentencing in this case, a State conviction underlying his career offender designation was subsequently expunged by a Maryland court. And, he complains that his lawyer failed to raise this issue on appeal. Because Carrington raised a new issue in his Reply (see ECF 2112), by Order of December 13, 2018, I asked the government to respond. ECF 2139. The government's response is docketed at ECF 2141. Carrington again replied. ECF 2145.

         Under 28 U.S.C. § 2255(b), a hearing is required “[u]nless the motion and the files and records of the case conclusively show the prisoner is entitled to no relief . . . .” This is such a case. No. hearing is necessary. For the reasons that follow, I shall deny the Petition.

         I. Procedural Background[1]

         At the relevant time, Carrington was a member of the Black Guerilla Family (“BGF”), a street and prison gang. “From 2007 through 2013, the Baltimore City Detention Center [‘BCDC'] was home to a sprawling criminal enterprise led by the [BGF].” United States v. Carrington, 700 Fed. App'x 224, 226 (4th Cir. 2017).

         Carrington, an inmate at BCDC, was one of 44 defendants federally indicted in 2013 on charges that included Racketeering Conspiracy under the Racketeering Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and conspiracy to distribute and possess with intent to distribute controlled dangerous substances. ECF 418 (Superseding Indictment); ECF 869 (Second Superseding Indictment). As indicated, the charges were rooted in the pervasive criminal enterprise at BCDC, a facility for pretrial detainees, involving the smuggling of narcotics, tobacco, and cell phones. The defendants generally consisted of two groups: BGF members who were inmates at BCDC, and corrupt correctional officers who worked at BCDC and helped to facilitate the criminal enterprise. The government claims that Carrington was a “high-ranking member of BGF . . . .” ECF 2119 at 2.[2]

         Prior to trial, on October 22, 2014, the government filed a notice of intent to seek an enhanced minimum sentence as to Carrington, pursuant to 21 U.S.C. § 851. ECF 1110. This alerted Petitioner that a maximum sentence of thirty years would be sought if he was found to have at least one prior conviction for a felony drug offense.

         Although most of the defendants pleaded guilty, Carrington was one of eight defendants who proceeded to a jury trial, at which Judge J. Frederick Motz presided. The trial began on November 17, 2014, and on February 5, 2015, the jury returned a verdict of guilty as to Carrington and four other defendants. ECF 1425; ECF 1426. Two of the five convicted defendants were BGF gang members who had been inmates at BCDC and three were correctional officers who worked at BCDC. In particular, Carrington was convicted of racketeering conspiracy (Count One) and conspiracy to distribute drugs (Count Two), i.e., oxycodone, buprenorphine, marijuana, and alprazolam. Id.

         The Presentence Report (“PSR”) was filed on March 16, 2015. ECF 1558.[3] Carrington's sentencing was held on March 27, 2015. ECF 1584. At sentencing, the Court determined that Carrington had an offense level of 34 and a criminal history category of VI. ECF 1901 (Sentencing Transcript) at 17; ECF 1609 (Statement of Reasons); see also ECF 1558, ¶¶ 15-22. Therefore, Carrington had an advisory sentencing guidelines range of 262 to 327 months of imprisonment. ECF 1558, ¶ 108.

         Notably, according to the PSR, Carrington had a total offense level of 34 after applying enhancements to his base offense level. Alternatively, he also had an offense level of 34 because he was a career offender. And, he had a criminal history category of VI, based on his criminal history points and also because he was a career offender. See ECF 1558, ¶¶ 13-24, 44-47.

         The government sought a total sentence of 300 months (25 years) of incarceration. ECF 1901 at 6. However, the district court varied downward on the basis of the factors under 18 U.S.C. § 3553(a), and imposed a total sentence of 210 months (18 years) imprisonment, i.e., 52 months below the bottom of Carrington's advisory sentencing guideline range, and 90 months below the government's recommendation. ECF 1608 (Judgment, docketed April 8, 2015); ECF 1609 (Statement of Reasons); ECF 1901 at 17.

         On March 28, 2015, Petitioner filed a Notice of Appeal. ECF 1586. In a consolidated appeal, involving the other defendants convicted at trial, the Fourth Circuit affirmed Petitioner's convictions and sentence by way of an opinion issued on July 25, 2017. ECF 1992; see United States v. Carrington, et al., 700 Fed.Appx. 224 (4th Cir. 2017). The Fourth Circuit concluded that the evidence was sufficient to support Petitioner's racketeering conviction and that the district court did not err in admitting certain coconspirator testimony. Id. at 232 n. 2. However, as to one codefendant, Joseph Young, the Court upheld the convictions but vacated the sentence and remanded for a new sentencing. This is discussed, infra.

         II. Standard of Review

         Carrington is self represented. Therefore, this Court must construe his pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Alley v. Yadkin County Sheriff Dept., 698 Fed. App'x 141 (4th Cir. Oct. 5, 2017) (citing Erickson for the proposition that “[p]ro se complaints and pleadings, however inartfully pleaded, must be liberally construed and held to less stringent standards than formal pleadings drafted by lawyers”).

         Under 28 U.S.C. § 2255, a prisoner may seek to vacate, set aside, or correct his sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See Hill v. United States, 368 U.S. 424, 426-27 (1962) (citing 28 U.S.C. § 2255). “[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Addonizio, 422 U.S. 178, 185 (1979) (quoting Hill, 368 U.S. at 428).

         The scope of a § 2255 collateral attack is far narrower than an appeal, and a “‘collateral challenge may not do service for an appeal.'” Foster v. Chatman, U.S., 136 S.Ct. 1737, 1758 (2016) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)). Thus, any failure to raise a claim on direct appeal constitutes a procedural default that bars presentation of the claim in a § 2255 petition unless the petitioner can demonstrate “cause and prejudice” or “actual innocence.” See Dretke v. Haley, 541 U.S. 386, 393 (2004): Reed v. Farley, 512 U.S. 339 (1994); Murray v. Carrier, 477 U.S. 478, 485 (1986); see also Bousley v. United States, 523 U.S. 614, 621 (1998) (“Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.”) (internal quotations and citations omitted); United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010); United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999). In contrast, any “failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255.” Massaro v. United States, 538 U.S. 500, 509 (2003).

         Generally, the rule governing procedural default of claims brought under § 2255 precludes consideration of any contentions that “‘could have been but were not pursued on direct appeal, [unless] the movant . . . show[s] cause and actual prejudice resulting from the errors of which he complains.'” Pettiford, 612 F.3d at 280 (quoting Mikalajunas, 186 F.3d at 492-93). Under the “cause and prejudice” standard, the petitioner must show: (1) cause for not raising the claim of error on direct appeal; and (2) actual prejudice from the alleged error. Bousley, 523 U.S. at 622; see also Dretke, 541 U.S. at 393; Massaro, 538 U.S. at 505; Reed, 512 U.S. at 354 (“the writ is available only if the petitioner establishes ‘cause' for the waiver and shows ‘actual prejudice resulting from the alleged violation.'”); Murray v. Carrier, 477 U.S. at 485, 496; Frady, 456 U.S. at 167-68; Mikalajunas, 186 F.3d at 492-93.

         In order to show cause for not raising the claim of error on direct appeal, a petitioner must prove that “some objective factor external to the defense such as the novelty of the claim or a denial of effective assistance of counsel” impeded their counsel's efforts to raise the issue earlier. Coleman v. Thompson, 501 U.S. 722, 753 (1991); see Carrier, 477 U.S. at 492 (“[C]ause . . . requires a showing of some external impediment preventing counsel from constructing or raising the claim.”); Mikalajunas, 186 F.3d at 493 (movant must demonstrate “something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel”). Additionally, the alleged error cannot simply create a possibility of prejudice, but must be proven to work to the petitioner's “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S. at 170 (emphasis in original). Pursuant to the Supreme Court's ruling in Carrier, 477 U.S. at 494, prejudice does not support relief of a procedural default in the absence of a showing of cause. See also Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982).

         The actual innocence exception “only applies in limited circumstances.” United States v. Jones, 758 F.3d 579, 583 (4th Cir. 2014). Indeed, it must be “an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent . . . .” Carrier, 477 U.S. at 496.

         In order to show “actual innocence, ” the petitioner “must demonstrate actual factual innocence of the offense of conviction, i.e., that petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent.” Mikalajunas, 186 F.3d at 494 (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)); see also Bousley, 523 U.S. at 623. Notably, the petitioner must meet this burden by clear and convincing evidence. Mikalajunas, 186 F.3d at 494. In other words, a “petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Jones, 758 F.3d at 583; see Bousley, 523 U.S. at 623.

         As the Fourth Circuit recently said, “A valid actual innocence claim ‘requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.'” Finch v. McKoy, F.3d, 2019 WL 324667, at *4 (4th Cir. Jan. 25, 2019) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). Moreover, a petitioner must “‘demonstrate that the totality of the evidence would prevent any reasonable juror from finding him guilty beyond a reasonable doubt, such that his incarceration is a miscarriage of justice.'” Finch, 2019 WL 324667, at *4 (quoting Teleguz v. Pearson, 689 F.3d 322, 329 (4th Cir. 2012)). It is an “exacting standard, ” based on a “‘holistic judgment about all the evidence'. . . .” Finch, at *5 (quoting House v. Bell, 547 U.S. 518, 539 (2006)).

         As to claims that were previously litigated on direct appeal, they are generally not cognizable under § 2255. Schlup, 513 U.S. at 318-19. In Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976), the Court said that a petitioner “will not be allowed to recast, under guise of a collateral attack, questions fully considered” and decided on direct appeal. See also Abbamonte v. United States, 160 F.3d 922, 924 (2d Cir. 1998).

         However, failure to raise on direct appeal a claim of ineffective assistance of counsel is not regarded as procedurally defaulted. Massaro v. United States, 538 U.S. 500, 509 (2003). Thus, such a claim is not barred under § 2255.

         III. Discussion

         Carrington asserts several grounds for relief. First, he claims that his lawyer provided ineffective assistance of counsel by failing to object to the drug quantity in the Presentence Report, and to the court's failure to make particularized findings as to drug quantity. ECF 212 3-6 at 4. And, he contends that his attorney was ineffective for failure to object to a four-level enhancement for role in the offense. Id. at 3. In addition, he complains that his attorney was ineffective because he failed to request an informant instruction. Id. at 10. He also suggests an issue as to sufficiency of the evidence.

         In addition, in Carrington's Reply (ECF 2120), he asserts that he no longer qualifies as a career offender, due to a post-sentencing expungement, and therefore his lawyer was ineffective for “failing to seek corrective measures . . . .” Id. at 1. In particular, Carrington claims that one of his two prior State convictions, used to establish his criminal history category, was expunged about ten months after his federal sentencing. Id. at 9. Therefore, he claims that his lawyer should have raised the matter on appeal or sought a remand for resentencing. Id.

         A. Ineffective Assistance of Counsel

         The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); see also Buck v. Davis, U.S., 137 S.Ct. 759, 775 (2017). Ineffective assistance of counsel is a well recognized basis for relief under 28 U.S.C. § 2255. See generally Missouri v. Frye, 566 U.S. 134 (2012); Lafler v. Cooper, 566 U.S. 156 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010).

         To mount a successful challenge under 28 U.S.C. § 2255, based on a Sixth Amendment claim of ineffective assistance of counsel, a petitioner must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687-88 (1984). See Chaidez v. United States, 568 U.S. 342, 348 (2013); Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Lafler, 566 U.S. at 162-63; Hill v. Lockhart, 474 U.S. 52 (1985); United States v. Rangel, 781 F.3d 736, 742 (4th Cir. 2015); Richardson v. Branker, 668 F.3d 128, 139 (4th Cir. 2012); United States v. Higgs, 663 F.3d 726, 735 (4th Cir. 2011); see, e.g., United States v. Baker, 719 F.3d 313, 318 (4th Cir. 2013).

         The first prong is known as the “performance prong, ” which relates to professional competence. The petitioner must show that his attorney's performance fell “below an objective standard of reasonableness, ” measured by “prevailing professional norms.” Strickland, 466 U.S. at 688; see United States v. Powell, 850 F.3d 145, 149 (4th Cir. 2017). The burden is on the petitioner to establish “‘that counsel made errors so serious that “counsel” was not functioning as the ...


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